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CIRCULAR No

CIRCULAR No.5-LDTBXH/TT OF FEBRUARY 12, 1996 GUIDING THE HANDING OF ADMINISTRATIVE FINES ON NON-SIGNING OF LABOR CONTRACT AS STIPULATED IN DECREE No.87-CP OF DECEMBER 12, 1995 AND DECREE No.88-CP OF DECEMBER 14, 1995 OF THE GOVERNMENT

Pursuant to Decree No.87-CP of December 12, 1995 of the Government on strengthening the control of cultural and cultural service activities, and stepping up the fight against a number of serious social vices, and Decree No.88-CP of December 14, 1995 of the Government stipulating the fining of administrative violations in cultural and cultural service activities, fighting and preventing a number of social vices, the Ministry of Labor, War Invalids and Social Affairs gives the following guidance on the handing of administrative fines on the non-signing of labor contract:

I. SUSCEPTIBLE TO FINES:

Susceptible to fines are owners of dancing floors, karaoke and massage parlors, hotels, rest-houses, sanatoria, rented apartments, inns, restaurants, cafes, and beverage shops employing dancing girls, waitresses and female employees (hereunder referred to as laborers) without signing a labor contract.

II. VIOLATIONS AND THE RATES OF FINES:

Violations and the rates of fines are concretely defined in Article 4; Point c, Item 3, Article 15, and Item 2, Article 22, of Decree No.88-CP of December 14, 1995 of the Government:

1. With regard to dancing floors:

a/ Those owners who fail to sign a labor contract with the laborers shall be fined up to 3.2 million VND.

b/ If such violations contain extenuating factors, the rate of fine may be reduced, but not to lower than 1.5 million VND. If such violations contain aggravating factors, the rate of fine may be increased, but not to more than 5 million VND.

2. With regard to the other establishments:

a/ Those employers who fail to sign a labor contract with the laborers shall be fined up to 3.5 million VND.

b/ If such violations contain extenuating factors, the rate of fine may be reduced, but not to less than 2 million VND. If such violations contain aggravating factors, the rate of fine may be increased, but not to more than 5 million VND.

3. Those employers at the establishments mentioned in this Circular who fail to register and report their employment of laborers to the Labor, War Invalids and Social Affairs Service of the precinct, district, town or provincial city (hereunder referred to as district level) shall be fined from 400,000 to 600,000 VND.

4. The following factors shall be considered extenuating:

a/ The violation is committed for the first time.

b/ The person concerned sincerely admits his/her fault and pledges never to do so again.

5. The following factors are considered aggravating:

a/ A second violation is committed, or the same violation is repeated.

b/ Several violations are committed.

c/ The person concerned abuses his/her position or power to commit the violation.

d/ The employer employs laborers under 18 years of age.

e/ The person concerned commits the violation while he/she is carrying out a decision on the fining of violations of the labor law.

f/ The person concerned tries to shirk his/her responsibility for the violation, or to cover up his/her violation.

g/ The person concerned fails to observe the decisions of the State Inspector on labor.

III. THE ORDER OF INSPECTION AND THE PROCEDURE OF FINING:

1. The inspection of labor at the establishments mentioned in Part I of this Circular shall be carried out according to the provisions in Articles 29, 30, 31, 32 and 33 of the Ordinance on Inspection dated April 1st, 1990.

The fining dossier includes:

- A written report of the inspection made according to the provisions of the Ordinance on Inspection of April 1st, 1990.

- The conclusions made by the Inspectors on the inspection.

- A fining decision made by the authorized person.

This dossier is made in 3 copies, one to be handed to the offender, another sent to the State Treasury, and a third kept at the State agency which hands the fine.

2. The procedure of fining:

The person who is authorized to hand fines shall issue a fining decision attached to a dossier when he/she detects a violation. If he/she is not authorized to impose a fine, he/she shall make a written report of the violation and petition the authorized person to issue a fining decision attached to a dossier.

The collection, remittance and use of fine payments shall comply with the common provisions of law.

IV. THE AUTHORITY TO HAND FINES:

1. The General Inspector or the Head of the State agency performing the function of inspecting labor under the Ministry of Labor, War Invalids and Social Affairs and belonging to the Labor, War Invalids and Social Affairs Service; the Presidents of the People's Committees at district level are authorized to hand fines up to the level stipulated in Item 3, Article 15, and Item 2, Article 22, of Decree No.88-CP of the Government and this Circular.

2. Labor inspectors have the right to make a written report of a violation when he/she detects a violation of commitments in a labor contract, suggest a fine rate and send it to one of the authorized persons mentioned in Point 1 for issuing the fining decision.

3. In case an inter-branch Control Group or an inter-branch Inspectors' Group discovers violations of commitments in a labor contract, they shall have the right to make a written report of such violations, suggest a fine rate, and send it to one of the authorized persons mentioned in Point 1 for issuing the fining decision.

If the Inspectors or Control Group includes one of the authorized persons mentioned in Point 1, it can directly issue the fining decision.

V. ORGANIZATION OF IMPLEMENTATION:

1. The Directors of the Labor, War Invalids and Social Affairs Services of the provinces and cities directly under the Central Government shall direct the Inspectors of these services to carry out control and inspection, and impose due fines on violations in the implementation of stipulations on the commitments of a labor contract with fine rates set in Decree No.87-CP and Decree No.88-CP of the Government and this Circular; direct the specialized State agencies in charge of fighting and preventing social vices to cooperate with the labor Inspectors, the departments and branches concerned in intensifying their control of the implementation of the Statute and Regulations issued together with Decree No.87-CP of December 12, 1995 of the Government.

2. The Labor, War Invalids and Social Affairs Section at district level must intensify its control of the registration and report the number of laborers employed by employers at the establishments mentioned in this Circular; promptly report their registration and violations to the Labor, War Invalids and Social Affairs Service and the People's Committee at district level for settlement.

This Circular takes effect from the date of its signing.

In the process of implementation, if any problem arises, it should be reported to the Ministry of Labor, War Invalids and Social Affairs for consideration and settlement.

The Minister of Labor, War Invalids and Social Affairs

TRAN DINH HOAN